Partly allowed

Sri Muneer Ahamed v. D S Gangadhara

Karnataka HC11 Aug 2023MFA/3724/2017

Case brief

AI extract

What is this about?

In an appeal against a motor accident award, the High Court set aside the tribunal's decision. The court clarified insurer liability regarding driving licenses, adjusted the compensation quantum based on MSLSA guidelines to Rs. 3,59,740/-, and directed specific respondents to deposit the amount.

What did the court decide?

Compensation enhanced to Rs. 3,59,740/- with 6% interest. Liability shared 50% by Respondent No. 2 and 50% by Respondent No. 6. Appeal against R4 dismissed.

Sri Muneer Ahamed Vs D S Gangadhara — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC:28958 MFA No. 3724 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE C M JOSHI

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MISCELLANEOUS FIRST APPEAL NO. 3724 OF 2017 (MV-I)

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BETWEEN:

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SRI MUNEER AHAMED, S/O. ABDUL MUNAF, AGED ABOUT 32 YEARS, AT PRESENT NO WORK, R/O. KUNDUR VILLAGE & POST, HONNALI TALUK, DAVANAGERE DISTRICT-577 217.

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…APPELLANT

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(BY SRI SIDDESWARA N.K., ADVOCATE)

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AND:

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Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

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D.S GANGADHARA, S/O. SHIVAPPA, AGED ABOUT 36 YEARS, RIDER OF HERO HONDA CD DELUXE, BEARING REG.NO.KA-17/X-309, R/O. NELAGONNE VILLAGE, HONNALI TOWN, DAVANAGERE DISTRICT-577 217.

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D.B.THIPPESHI, S/O. BHAIRAPPA, AGED ABOUT 50 YEARS, OWNER OF HERO HONDA CD DELUXE, BEARING REG.NO.KA-17/X-309, R/O: NELAGONNE VILLAGE, HONNALI TOWN, DAVANAGERE DISTRICT-577 217.

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N.M.MOHAN, S/O. MAHESHWARAPPA, MAJOR,

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POLICY HOLDER OF HERO HONDA CD DELUXE, BEARING REG.NO.KA-17/X-309, R/O NELAGONNE VILLAGE, HONNALI TOWN, DAVANAGERE DISTRICT-577 217.

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UNITED INDIA INSURANCE CO. LTD., P.B.NO.123, CHANNAGIRI ROAD, BHADRAVATHI-577 301, REPRESENTED BY ITS BRANCH MANAGER.

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TANWEER PASHA, S/O. MOHAMMED KHALEEL, AGED ABOUT 35 YEARS, PAINTER, OWNER-CUM-RIDER OF BAJAJ PULSAR, BEARING REG.NO.KA-16/W-2752, R/O: 3RD CROSS, JOGIMATTI, CHITRADURGA-577 501.

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NATIONAL INSURANCE CO. LTD., P.B.NO.94, 1ST FLOOR, B.M.COMPLEX, LAKSHMI BAZAAR, CHITRADURGA-577 501, REPRESENTED BY ITS BRANCH MANAGER.

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…RESPONDENTS

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(BY SRI P B RAJU, ADVOCATE FOR R4; SRI VEERESHA.K, ADVOCATE FOR R5; SRI A RAVISHANKAR, ADVOCATE FOR R6; R1, R2 AND R3 SERVED AND UNREPRESENTED.)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.10.2016 PASSED IN MVC NO.40/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MACT, HARIHAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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NC: 2023:KHC:28958 MFA No. 3724 of 2017

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JUDGMENT

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This appeal is directed against the judgment and award in MVC.No.40/2013 by the Senior Civil Judge and Member, Additional MACT, Harihar dated 05.10.2016, whereby, compensation of Rs.1,51,570/- has been awarded.

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2. Brief facts of the case are as below:

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On 30.04.2012 at about 03.00 p.m., the petitioner being the pillion rider and his father-in-law by name Tanweer Pasha being rider of the motorcycle bearing Reg.No.KA-16/W-2752, were proceeding through Sanganahalli-Belalgere Road and when they were near Kundur Village, the rider of the said motorcycle and the rider of the motorcycle bearing Reg.No.KA17/X-0309 which was coming from the opposite direction were drove their vehicles in rash and negligent manner on the middle of the road and in consequences of that the accident took place due to the head on collision of both vehicles. The petitioner sustained grievous injuries to the different parts of his body and he took to Bapuji Hospital, Davanagere, wherein, he took treatment as inpatient from 30.04.2012 to 16.05.2012, he underwent surgery and spent Rs.60,000/- towards medical treatment.

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It was further contended that the accident was due to the rash and negligent driving of motorcycles by respondents Nos.1 and 5 and the petitioner was hale and healthy prior to the accident, working as Computer Operator in HAPL Company, Bengaluru and earning Rs.7,500/- p.m. Due to the accident he is not in a position to work and badly affected his income.

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It was further contended that the Basavapatna Police Station has registered the case against the respondent Nos.1 and 5 who are the riders of motorcycles respectively and prayed to allow the petition.

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On issuance of notice by the Tribunal, respondent Nos.2, 3, 4 and 6 appeared through their respective counsels and respondent Nos.1 and 5 were placed ex-parte .

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Respondent Nos.2 and 3 have not filed their written statements and respondent Nos.4 and 6 have filed their written statements separately.

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Respondent No.4-Insurance Company in its objection statement has denied the contents of the petition and inter-alia, it has contended that the Insurance Policy concerned

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to the motorcycle bearing Reg.No.KA-17/X-0309 for a period from 02.02.2012 to 01.02.2013 is issued by it. The terms and conditions of the policy were violated. The accident was because of rash and negligent driving of the motorcycle bearing Reg.No.KA-16/W-2752 by the respondent No.5 and it was not due to rash and negligent driving of the motorcycle bearing Reg.No.KA-17/X-0309 by the respondent No.1. It is contended that the rider of the motorcycle bearing Reg.No.KA-17/X-0309 had not possessed valid and effective Driving Licence at the time of the accident and thereby the Charge Sheet for the offence punishable under Section 3 read with 181 of the M.V. Act is filed.

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Further it was contended that the compensation

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sought by the petitioner is highly excessive, exorbitant and fanciful. The respondent is at liberty to invoke the provision of Sections 147, 149 & 170 of the Act and prayed to dismiss the petition.

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Respondent No.6-Insurance Company in its objection statement has denied the contents of the petition and inter-alia it has contended that it has issued insurance policy

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pertaining to the motorcycle bearing Reg.No.KA-16/W-2752 for a period from 10.01.2012 to 09.01.2013, the accident was due to self negligence on part of the petitioner and the petitioner with an intention to cause wrongful gain for himself he posed himself as pillion rider of the motorcycle bearing Reg.No.KA16/W-2752. It was further contended that the accident occurred due to rash and negligent driving of the rider of the motorcycle bearing Reg.No.KA-17/X-0309, the rider of the said motorcycle has not possessed valid and effective driving licence and he drove it without following the traffic rules and regulations, respondent Nos.1, 2 and 5 colluded with each other and filed this petition through the petitioner for wrongful gain of the petitioner. The police have not complied the provision of Section 158(6) of the M.V Act and it has denied the age, income, medical expenses, disablement and other expenses of the petitioner and it is at liberty to invoke the provision of Sections 147, 149 and 170 of the Act and the claim of interest by the petitioner is exorbitant and prayed to dismiss the petition.

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On the basis of the above pleadings, the Tribunal framed appropriate issues. The petitioner was examined as

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PW.1 and Exs.P1 to P54 were marked. The doctor who assessed the disability of the petitioner was examined as PW.2. The respondents examined 3 witnesses as RWs.1 to 3 and Exs.R1 to 8 were marked in evidence.

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After hearing the arguments by both the sides, the Tribunal has awarded a compensation of Rs.3,03,140/- to the petitioner and directed 50% of the compensation to be paid by respondent Nos.1 and 2 and remaining 50% to be paid by the respondent No.5 and dismissed the petition against respondent Nos.3, 4 and 6 under different heads as below:

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PARTICULARS	AMOUNT (IN RS.)
Loss of earning (Rs.72,000/- X 15 X 17 /100)	1,83,600/-
Pain and suffering	30,000/-
Medical Expenses	24,540/-
Loss of during laid of period	15,000/-
Transportation, Medical Attendant Charges and Nourishment	20,000/-
Towards amenities	30,000/-
TOTAL	3,03,140/-

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Being aggrieved by the judgment and award, the petitioner has approached this Court in appeal.

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On issuance of notice by this Court, respondent

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Nos.1 to 3 did not appear despite service of notice and the respondent Nos.4 to 6 were appeared through their respective counsels.

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On admitting the appeal, the trial Court records have been secured and the arguments by both the sides were heard.

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Learned counsel appearing for the appellant contended that the trial Court committed an illegality in not fixing liability against respondent Nos.4 and 6 who are the insurers of the vehicles involved in the accident, even though, the Tribunal held issue No.1 in the affirmative and there was no

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issue with regard to the contributory negligence. It is contended that the finding of the Tribunal in fixing liability on respondent Nos.2 and 5 who are the owner of the offending motorcycle and the rider of the motorcycle, on which the petitioner was pillion rider is totally erroneous and unsustainable under law. It is also contended that the compensation awarded by the Tribunal under the head of 'loss of earning capacity' and other heads are abysmally low and not

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in accordance with the settled positions of law. He contended that non-possession of the driving licence or defective driving licence should have resulted in an order of pay and recovery. In this regard, he relies on the decision in the case of PUSHKAR MEHRA VS. BRIJ MOHAN KUSHWAHA AND OTHERS¹ and KURUVAN ANSARI ALIAS KURVAN ALI VS. SHYAM KISHORE MURMU² .

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Per contra , learned counsels appearing for respondent Nos.4 and 6 have contended that the Tribunal has rightly fastened the liability on the owner and rider and there is no need for intervention by this Court. They also contended that the compensation awarded is adequate, just and reasonable and as such, sought for dismissal of the appeal.

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It is the contention of the appellant that he was pillion rider of the vehicle bearing registration No.KA-16/W2752 owned and ridden by respondent No.5-Tanweer Pasha and it was insured by respondent No.6/National Insurance Company Limited. It is the case of the petitioner that the other motorcycle which came from the opposite direction bearing

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1 (2015) 12 SCC 688

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2 2022(1) SCC 317

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registration No.KA-17/X-0309 was ridden by respondent No.1, owned by respondent No.2 and insured by respondent No.4United India Insurance Company Limited. However, the policy of the said vehicle was in the name of respondent No.3.

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Both the Insurance Companies contended that the riders of the vehicles were not holding the valid driving licence at the time of the accident and therefore, they sought for absolving their liabilities.

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The evidence of the Investigating Officer who was examined before the Tribunal as RW.1 discloses that he investigated the matter and filed the charge sheet against both the riders and they had driven their respective vehicles in rash and negligent manner. He deposed that respondent No.5Tanweer Pasha did not possess a valid driving licence at the time of the accident. He also deposed that the accident occurred due to the head-on collision at the center of the road. He also deposed that respondent No.1 was also not having the driving licence and therefore, charge sheet was filed for the offence under the provisions of the MV Act also.

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During the pendency of this appeal, learned counsel appearing for the appellant had produced the extract of the driving licence of respondent No.5-Tanweer Pasha by filing an application under Order XLI Rule 27 of CPC. The said application was not opposed by the respondents. The learned counsel appearing for respondent No.6-Insurance Company has fairly submitted that he has verified the driving licence of respondent No.5 and it was valid at the time of the accident. Thus, he has fairly conceded that respondent No.6 is liable to pay the compensation to the petitioner who was the pillion rider on the motorcycle of respondent No.5. As such, the IA filed under Order XLI Rule 27 of CPC is allowed.

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So far as the driving licence of respondent No.1,

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who was the rider of vehicle bearing No.KA-17/X-0309 is concerned, the records reveal that despite service of notice to respondent No.4 to produce the driving licence, as evidenced by Exs.R4 to 6, he did not produce the driving licence. Therefore, it is evident that respondent No.1 did not possess a valid driving licence at the time of the accident. In that view of the matter, it is respondent No.2, owner of the two wheeler who is liable to pay the compensation to the petitioner. It is

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evident that respondent No.2 has appeared before the Tribunal but had not contested the matter in any way by filing written statement. Therefore, in view of the decision in the case of

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NATIONAL INSURANCE CO. LTD. VS. SWARAN SINGH

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AND OTHERS³ , the pay and recovery order is not permissible. If at all respondent No.2 had contested and stated that he had licence but it was defective such a contention could have been considered by the Court. Hence, the respondent Nos.2 and 6 are liable to pay the compensation to the petitioner.

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The accident being at the center of the road and the charge sheet being laid against both the riders and nothing having been brought on record to show that any one of them had contributed more towards the negligence, the fastening of the liability to the extent of 50% on each of the riders is fully justifiable. Hence, no fault can be found with respect to the finding of the Tribunal that the apportionment of the liability has to be 50% each.

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The next question that arises is regarding the quantum of compensation. The petitioner had sustained

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3 (2004) 3 SCC 297

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fracture of the left femur and fracture of the right wrist. the PW.2 has stated that the petitioner was admitted to Bapuji Hospital, Davanagere for treatment and on assessment of the disability, it was found that there is 25% to 30% disability. Petitioner had contended that he was working as a Computer Operator in a Private Company at Bengaluru and earning Rs.7,500/- pm and therefore, he has suffered a permanent functional disability on account of the injuries to the hand. However, though a salary certificate was produced as per Ex.P52, it was not proved as required under law. Consequently, the Tribunal has considered the notional income at Rs.6,000/per month. The Tribunal has considered the functional disability at 15%.

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It is evident that the Tribunal has considered the disability at 15% by considering the avocation of the petitioner. No fault can be found with respect to the said finding. However, the notional income considered by the Tribunal appears to be on the lower side. The guidelines issued by the Karnataka State Legal Services Authority for settlement of the disputes before the Lok-Adalat prescribe a notional income of Rs.7,000/- pm for the year 2012. In umpteen number of decisions, it has been

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held that the guidelines issued by the KSLSA are in general conformity with the wages fixed under the Minimum Wages Act and therefore, the notional income of the deceased is considered at Rs.7,000/- per month. Hence, the 'loss of future income' is calculated as Rs.7,000/- X 12 X 17 X 15% = Rs.2,14,200/- by adopting multiplier '17' for the age of 28 years. As a consequence, the compensation under the head of 'loss of income during laid up period' is calculated for 3 months as Rs.7,000/- X 3 = Rs.21,000/-.

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The Tribunal has awarded a sum of Rs.30,000/under the head of 'pain and suffering'. By considering the nature of the injuries suffered by the petitioner, it is just and proper to award a sum of Rs.50,000/- under this head.

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The compensation awarded by the Tribunal under the head of 'medical expenses', 'transportation, medical attendant charges, loss of amenities' do not require any enhancement.

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Thus, the petitioner is entitled for the modified compensation under different heads as below:

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PARTICULARS	AMOUNT (IN RS.)
Loss of future income	2,14,200/-
loss of income during laid up period	21,000/-
Pain and suffering	50,000/-
Medical Expenses	24,540/-
Transportation, Medical
Attendant Charges and	20,000/-
Nourishment
Towards amenities	30,000/-
TOTAL	3,59,740/-

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The Tribunal while considering the respective liabilities and fastening the same on respondent Nos.1, 2 and 5, has deducted 50% twice as may be seen from para 29 of the judgment. Evidently, the Tribunal could not have awarded 50% of the compensation calculated by it though there was no contributory negligence on the part of the petitioner who was a pillion rider.

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In view of liability fastened upon respondent Nos.2 and 5 at equal proportions, they are liable to pay the compensation accordingly. The respondent No.5's vehicle being insured by respondent No.6 under a valid policy, the respondent No.6 has to pay the compensation by indemnifying

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the liability of respondent No.5. Hence, the appeal deserves to be allowed in part.

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Thus, the petitioner is entitled for compensation of Rs.3,59,740/- together with interest at 6% p.a. Hence, the following:

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ORDER

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The appeal is allowed.

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The impugned judgment and award passed by the Tribunal is set aside.

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The appellant is entitled for compensation of Rs.3,59,740/- along with interest at the rate of 6% per annum from the date of petition till its deposit.

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The respondent No.2 is liable to pay to the extent of 50% and the respondent No.6-Insurance Company limited is liable to pay to the extent of 50% of the compensation amount to the petitioner along with proportionate interest.

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They are directed to deposit the compensation amount within a period of eight weeks from today.

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